The contract
The Promise to Marry
An engagement is a contract — with a special subject-matter.
What it is
An engagement (betrothal) is a contract between a man and a woman (or, since the Civil Union Act, two persons) to marry each other on, or within a reasonable time of, a future date. Because it is a contract, it must meet the ordinary contractual requirements.
Requirements
- Capacity to act — a minor needs the consent of the parent/guardian (though the engagement is not itself a marriage)
- Consensus — a genuine, serious agreement to marry each other, free of material mistake, misrepresentation or duress
- Lawfulness / physical possibility — the intended marriage must be legally permissible (both parties unmarried and not within the prohibited degrees)
- Both parties unmarried — an engagement while still married to another is void as contra bonos mores
Not specifically enforceable
An engagement can never be enforced by an order of specific performance — a court will not compel an unwilling party to marry. The only questions are whether it may be terminated and what damages (if any) follow.
Justa causa — valid grounds to terminate
A party may unilaterally and lawfully withdraw from an engagement if a justa causa (just cause) exists — a new or newly-discovered fact creating a reasonable prospect that the marriage would be unhappy or fail. Recognised grounds include: a partner's unfaithfulness; discovery of permanent impotence (not merely sterility); commission of a serious crime; serious mental illness or fundamental personality change; and a material mistake about the person's identity or essential qualities. A party who terminates with justa causa incurs no liability; the guilty party's gifts may be forfeited.
Key Rule
An engagement is a contract to marry (capacity · consensus · lawfulness). It is never specifically enforceable — the law will not force anyone to the altar. Unilateral withdrawal with justa causa is lawful and creates no liability.
Common Mistake
Treating an engagement as if it created marital duties or property consequences. It does not — the parties remain legally single with no reciprocal duty of support until the marriage is concluded.
Breaking it off
The Broken Promise
When an engagement is broken, what can the jilted party claim?
How it ends
An engagement ends by
(1) marriage;
(2) mutual agreement;
(3) death;
(4) justified termination for a sound reason arising after the engagement (e.g. a serious character flaw, infidelity, or loss of affection); or
(5) unjustified repudiation (breach) without a sound reason.
Two historical claims
- Breach of contract — the innocent party could claim actual patrimonial loss (e.g. wasted wedding expenses) and, formerly, prospective losses (the financial benefits the marriage would have brought)
- Delict (actio iniuriarum) — a claim for sentimental damages for the injury to feelings/personality caused by a contumelious (insulting) repudiation
The modern position
In Van Jaarsveld v Bridges the SCA treated an engagement as a spatium deliberandi — a "space to think before marriage" — and held that financial ruin should not threaten a party who changes their mind. Cloete v Maritz confirmed and extended this: claims for prospective loss (the lifestyle and financial benefits the marriage would have brought) are abolished as contrary to public policy. A delictual claim under the actio iniuriarum requires contumelia — a serious, deliberate insult to the party's dignity in the manner of the break-up; the break-up itself (even by SMS) does not suffice. What survives is a contractual claim for actual, proven wasted expenses (negative/reliance interest) reasonably incurred in preparing for the wedding.
Key Rule
After Van Jaarsveld v Bridges and Cloete v Maritz: no damages for prospective loss. Actio iniuriarum (sentimental damages) requires contumelia — rarely met. Recover only actual, proven wasted expenses (breach of contract).
Common Mistake
Claiming damages "for the marriage that never was" (prospective benefits) or automatically for hurt feelings. Post-Van Jaarsveld/Cloete those heads fall away — freedom to withdraw (spatium deliberandi) trumps the disappointed expectation. Contumelia, not mere hurt, is needed for delictual damages.
Leading Cases
Van Jaarsveld v Bridges2010 (4) SA 558 (SCA)Curtailed the action for breach of promise: no delictual (sentimental) damages and no prospective-loss damages — only actual patrimonial loss.
Facts. After an engagement was broken off, the disappointed party claimed both actual expenses and prospective (marriage-benefit) losses, together with sentimental damages.
Legal question. Should the action for breach of promise still allow damages for prospective loss and for wounded feelings?
Judgment. The SCA (per Harms DP) held that awarding contractual or delictual damages for a broken engagement is out of step with modern values, and confined recovery to actual expenses.
Significance. The leading modern authority curtailing the action for breach of promise in South African law.
Exam tip. Cite as the turning point: no prospective-loss and no sentimental damages for a broken engagement; only actual wasted expenses survive. Pair with Cloete v Maritz.
Cloete v Maritz2013 (5) SA 448 (WCC)Followed Van Jaarsveld: the jilted party recovers actual, reasonable wedding expenses, not prospective benefits or sentimental damages.
Facts. A party sued for damages following a broken engagement, including prospective benefits of the intended marriage.
Legal question. What damages remain claimable for breach of promise after Van Jaarsveld v Bridges?
Judgment. The court applied Van Jaarsveld and limited recovery to actual patrimonial loss.
Significance. Confirms and applies the restricted modern approach to breach of promise.
Exam tip. Use together with Van Jaarsveld to state the current law on engagement damages.
Sepheri v Scanlan2008 (1) SA 322 (C)An earlier statement of the two-fold (contractual and delictual) approach to breach of promise, now overtaken by Van Jaarsveld.
Facts. A claim arose out of a terminated engagement, argued on both contractual and delictual bases.
Legal question. On what bases could a party sue for a broken engagement under the older approach?
Judgment. The court applied the traditional two-fold framework, later overtaken by Van Jaarsveld v Bridges.
Significance. Illustrates the pre-Van Jaarsveld position on breach of promise.
Exam tip. Use to show the older law, then contrast with Van Jaarsveld to show how the action was narrowed.
The ring
The Engagement Gifts
Who keeps the ring when the wedding is called off?
Two kinds of gift
- Arrhae sponsalitiae — gifts given as an earnest to confirm the engagement (classically the ring). Made on condition that the marriage follows
- Sponsalitia largitas — ordinary gifts made in contemplation of marriage during the engagement
Return of gifts
If the marriage does not follow, gifts given in contemplation of the marriage are generally returnable, because the underlying reason (causa) for the gift has failed. The party who unjustifiably breaks the engagement may forfeit the engagement ring and gifts they gave; the innocent party may keep gifts received and reclaim gifts given. Absolute (unconditional) gifts and small tokens need not be returned.
Key Rule
Engagement gifts are conditional on the marriage. No marriage → gifts are returned; the party at fault may forfeit the ring.
Common Mistake
Assuming the ring is always returned regardless of fault. Fault matters: a party who wrongfully repudiates can forfeit what they gave and must return what they received.